7 ms·

Police hid use of cell phone tracking device from judge because of NDA

125 points by rajbala 13y ago

csense 13y ago
The police department has Constitutional obligation to follow the Fourth and Fifth Amendments. Don't these obligations trump the provisions of any private contract?
- sliverstorm 13y ago
  If companies are people, isn't disclosing private information belonging to that company is a violation of a person's privacy? Doesn't that mean the gov't also has a constitutional obligation to not break the privacy of companies? What do you even do when you have conflicting constitutional obligations...
  - skywhopper 13y ago
    You err on the side of protecting the innocent and allowing the guilty to go free. That's the entire premise behind our justice system--that it's better to allow criminals to get away with crimes than to punish innocent people.
    - dllthomas 13y ago
      "That's the entire premise behind our justice system--that it's better to allow criminals to get away with crimes than to punish innocent people." Well, that's the premise behind many aspects of our justice system. No justice system at all accomplishes it better than any justice system at all, without other considerations, so it's clearly not the entire premise behind the whole of our justice system.
  - maxerickson 13y ago
    The straightforward resolution is that the government shouldn't enter into agreements that create the conflict. (I guess the more complicated answer is that there are lots of legal cases determining how to balance the two sides in such conflicts)
  - nness 13y ago
    Interesting thought, but you've completely misunderstood the specifics of corporate personhood. Personal privacy is not reserved for incorporated entities at all.
  - judk 13y ago
    Then you ask the judge for a gag order so the secret info doesn't reach the public.
- george88b 13y ago
  No one wants to get sued, no matter how frivolous.
- jerf 13y ago
  The logically correct answer is that the police department should not have signed the contract due to a legal inability to keep up their end of the bargain. You can offer someone a contract in which they promise to pay you ten million dollars, but when they subsequently fail to pay up it isn't really a defense that they never had ten million dollars, nor any realistic expectation of having it. That doesn't mean they should just sign anyway, it means they should not sign. This is also the correct response to silverstorm's sibling post... the failure occurred at the signing, not in court. By then the police department had already lost. The police department should be legally compelled to tell the judge about this, then they should be held in breach of contract. This will not happen, of course, and our trust in our institutions and our belief that our society is based on anything other than raw power will take another fully-rationally-justified blow.
- rosser 13y ago
  If they don't, then the boilerplate verbiage that appears in pretty much every contract I've ever seen, which voids any provisions of said contract that are illegal or unenforceable without prejudice to any other terms of the contract, does. That is to say: any contract which includes such a clause can't bind you to do something illegal, just because you signed it. It's generally illegal to lie to a court, particularly when under oath.
  - judk 13y ago
    The oath doesn't change legal status, it just a psychology hack.
    - rosser 13y ago
      False. Perjury is a Federal crime. http://www.law.cornell.edu/uscode/text/18/1621 http://www.law.cornell.edu/uscode/text/18/1621
derekp7 13y ago
So here's the problem that I have with most of these types of cases, where police don't follow proper procedure to capture a suspect. Let's say they went through normal procedures -- get a sketch artist to make a possibly inaccurate caricature of the suspect, and use that to make an arrest, and have the victim ID the suspect. This has a good chance of convicting the wrong person. First, if the sketch is inaccurate, the victim may have that image in there mind afterwards, which would influence picking out the suspect from a lineup. Now, using the alternative procedure, in which the police are tracking down the victim's stolen phone (I'm assuming with the victim's blessing), there is a much higher chance of getting the right suspect. So, how do you argue with someone that the police should use inferior (but legal) evidence to put the (possibly wrong) person away, instead of using more accurate (but 4'th amendment violating) evidence to get the right person? Now in cases where proper procedure always gives superior evidence, then it is easier to argue for that (such as standards for collecting DNA evidence to avoid contamination). But in other cases, it is possible that unauthorized methods can lead police away from an innocent person and toward the guilty one.
- RBerenguel 13y ago
  There's a matter of borders. Where do we draw the line? Illegal wiretapping? Beating suspects? Blackmailing? Menaces?
  - mathattack 13y ago
    It's very tough, because it's easy to say after the fact if anyone has been harmed. There's also the concept of turning into a police state, which is bad, while you can argue away an individual wiretap. My 2 cents... Beating suspects is 100% bad. So is blackmailing. They destroy trust in the system. Wiretapping is touchier. If it reduces the amount of false convictions, is it worth giving up some aggregate civil liberty? No black and white answer.
    - lotsofmangos 13y ago
      Wiretapping without adequate oversight eventually destroys civil governance as it is just as effective a tool for social manipulation as it is for criminal evidence gathering.
arca_vorago 13y ago
'Police "did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal,"' "As two judges noted during the oral argument, as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant." I'm curious if the government plans to appeal, because if it goes to a higher court, I wouldn't be surprised if it was overturned. I have noticed a pattern where some middle level courts will actually, gasp, rule in favor of the Constitution, only to be overturned in a higher court (years later of course). This is such a blatant violation of the fourth amendment that it is disgusting (much like many other Constitutional violations happening these days). Also, please remember that according to Ruse Tice and an unnamed source of Sibel Edmonds, the SCOTUS itself is likely to be compromised via traditional intelligence tools (blackmail, corruption, etc). This is a symptom of larger issues at hand in society.
avsbst 13y ago
So in a case like this assuming the defendant is able to suppress any information used against him with respect to his location. Does it even matter for his case? The police now know who he is and assuming DNA evidence, rape test kit evidence, etc. come back and implicate him won't he still be found guilty? Or is all of that suppressed because the police wouldn't have found him otherwise without violating the 4th amendment? Edit: Made my first question more specific
- wmf 13y ago
  See http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
leepowers 13y ago
....as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant. This is the heart of the problem with law enforcement surveillance at all levels (local, state, federal). In the U.S. we've always had independent judicial oversight for police entering and searching your home. There's absolutely no reason why a similar invasion (if not more severe), which can track your movements and conversations, should be held to a lesser standard. Time and again law enforcement has sided with what's expedient. They should be erring on the side of caution when it comes to the fundamental rights of the citizens they've sworn to protect.
- wwweston 13y ago
  > Time and again law enforcement has sided with what's expedient. They should be erring on the side of caution when it comes to the fundamental rights of the citizens they've sworn to protect. Agreed. There seems to be a narrow view of which laws they're enforcing. I think it's arguable that when law enforcement fails to respect fundamental rights which are also part of the law they're ostensibly enforcing then they're failing at their job as much as if they were to observe a property crime in progress and take no action to catch the perps. Of course, it's also arguable that most officers (and prosecutors) work inside a system which incentivizes that narrow view.
pg_is_a_butt 13y ago
FUCK THE POLICE
pmorici 13y ago
Pretty sure an NDA can't prevent an individual from testifying truthfully in a court in the US no matter what the NDA says. So essentially the Police just lied.
- deleted 13y ago
  [deleted]
- DerpDerpDerp 13y ago
  Police in the US lied to a court of law? Why, that's just unpossible in this great nation!
  - EpicEng 13y ago
    If you're going to make a sweeping insult about all law enforcement in a given country at least try to use proper grammar when doing so. "Unpossible" is not a word.
    - DerpDerpDerp 13y ago
      There is a consistent trend in both prosecutors and police lying to defense attorneys and judges as part of criminal prosecutions in the US, across a large enough swath of the country and in federal courts (which inherently reflect on the country at large) to make it a fair accusation. The choice of the word "unpossible" was precisely to mock the position that police lying would be surprising as unintelligent.
    - rosser 13y ago
      It's also a meme, of which you may not be aware. It comes from Ralph Wiggum, the caricature of the special needs child on The Simpsons, when he says, "Me fail English? That's unpossible!" In common use, it's generally taken to mean exactly what the GP poster intended: a mock expression of surprise at a thing that is, in fact, assumed to be the case.
      - EpicEng 13y ago
gumby 13y ago
Metacomplaint: The real title of this piece should be "Police used NDA as an excuse to hide use of cell phone tracking device from judge." As others have already commented, (e.g. pmorici) there is no way a civil agreement could prevent disclosure in a criminal matter. It's no great surprise the police would want to do this. What's disappointing is the reflexive journalistic cringe to be "fair" which in fact ends up being unfair. I'm not advocating froth-at-the-mouth partisanship a la Fox News or WorldNetDaily. But this headline unambiguously skews the story by taking the cops' word as they (mendaciously) uttered it.
chrismcb 13y ago
It sounds like they did some dirty underhanded things... But did they get in trouble for finding the thief of a phone, by tracking the victim's phone?

125 points by rajbala 13y ago

The police department has Constitutional obligation to follow the Fourth and Fifth Amendments. Don't these obligations trump the provisions of any private contract?

sliverstorm 13y ago
If companies are people, isn't disclosing private information belonging to that company is a violation of a person's privacy? Doesn't that mean the gov't also has a constitutional obligation to not break the privacy of companies? What do you even do when you have conflicting constitutional obligations...
- skywhopper 13y ago
  You err on the side of protecting the innocent and allowing the guilty to go free. That's the entire premise behind our justice system--that it's better to allow criminals to get away with crimes than to punish innocent people.
  - dllthomas 13y ago
    "That's the entire premise behind our justice system--that it's better to allow criminals to get away with crimes than to punish innocent people." Well, that's the premise behind many aspects of our justice system. No justice system at all accomplishes it better than any justice system at all, without other considerations, so it's clearly not the entire premise behind the whole of our justice system.
- maxerickson 13y ago
  The straightforward resolution is that the government shouldn't enter into agreements that create the conflict. (I guess the more complicated answer is that there are lots of legal cases determining how to balance the two sides in such conflicts)
- nness 13y ago
  Interesting thought, but you've completely misunderstood the specifics of corporate personhood. Personal privacy is not reserved for incorporated entities at all.
- judk 13y ago
  Then you ask the judge for a gag order so the secret info doesn't reach the public.
george88b 13y ago
No one wants to get sued, no matter how frivolous.
jerf 13y ago
The logically correct answer is that the police department should not have signed the contract due to a legal inability to keep up their end of the bargain. You can offer someone a contract in which they promise to pay you ten million dollars, but when they subsequently fail to pay up it isn't really a defense that they never had ten million dollars, nor any realistic expectation of having it. That doesn't mean they should just sign anyway, it means they should not sign. This is also the correct response to silverstorm's sibling post... the failure occurred at the signing, not in court. By then the police department had already lost. The police department should be legally compelled to tell the judge about this, then they should be held in breach of contract. This will not happen, of course, and our trust in our institutions and our belief that our society is based on anything other than raw power will take another fully-rationally-justified blow.
rosser 13y ago
If they don't, then the boilerplate verbiage that appears in pretty much every contract I've ever seen, which voids any provisions of said contract that are illegal or unenforceable without prejudice to any other terms of the contract, does. That is to say: any contract which includes such a clause can't bind you to do something illegal, just because you signed it. It's generally illegal to lie to a court, particularly when under oath.
- judk 13y ago
  The oath doesn't change legal status, it just a psychology hack.
  - rosser 13y ago
    False. Perjury is a Federal crime. http://www.law.cornell.edu/uscode/text/18/1621 http://www.law.cornell.edu/uscode/text/18/1621

derekp7 13y ago

So here's the problem that I have with most of these types of cases, where police don't follow proper procedure to capture a suspect. Let's say they went through normal procedures -- get a sketch artist to make a possibly inaccurate caricature of the suspect, and use that to make an arrest, and have the victim ID the suspect. This has a good chance of convicting the wrong person. First, if the sketch is inaccurate, the victim may have that image in there mind afterwards, which would influence picking out the suspect from a lineup. Now, using the alternative procedure, in which the police are tracking down the victim's stolen phone (I'm assuming with the victim's blessing), there is a much higher chance of getting the right suspect. So, how do you argue with someone that the police should use inferior (but legal) evidence to put the (possibly wrong) person away, instead of using more accurate (but 4'th amendment violating) evidence to get the right person? Now in cases where proper procedure always gives superior evidence, then it is easier to argue for that (such as standards for collecting DNA evidence to avoid contamination). But in other cases, it is possible that unauthorized methods can lead police away from an innocent person and toward the guilty one.

RBerenguel 13y ago
There's a matter of borders. Where do we draw the line? Illegal wiretapping? Beating suspects? Blackmailing? Menaces?
- mathattack 13y ago
  It's very tough, because it's easy to say after the fact if anyone has been harmed. There's also the concept of turning into a police state, which is bad, while you can argue away an individual wiretap. My 2 cents... Beating suspects is 100% bad. So is blackmailing. They destroy trust in the system. Wiretapping is touchier. If it reduces the amount of false convictions, is it worth giving up some aggregate civil liberty? No black and white answer.
  - lotsofmangos 13y ago
    Wiretapping without adequate oversight eventually destroys civil governance as it is just as effective a tool for social manipulation as it is for criminal evidence gathering.

arca_vorago 13y ago

'Police "did not want to obtain a search warrant because they did not want to reveal information about the technology they used to track the cell phone signal,"' "As two judges noted during the oral argument, as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant." I'm curious if the government plans to appeal, because if it goes to a higher court, I wouldn't be surprised if it was overturned. I have noticed a pattern where some middle level courts will actually, gasp, rule in favor of the Constitution, only to be overturned in a higher court (years later of course). This is such a blatant violation of the fourth amendment that it is disgusting (much like many other Constitutional violations happening these days). Also, please remember that according to Ruse Tice and an unnamed source of Sibel Edmonds, the SCOTUS itself is likely to be compromised via traditional intelligence tools (blackmail, corruption, etc). This is a symptom of larger issues at hand in society.

avsbst 13y ago

So in a case like this assuming the defendant is able to suppress any information used against him with respect to his location. Does it even matter for his case? The police now know who he is and assuming DNA evidence, rape test kit evidence, etc. come back and implicate him won't he still be found guilty? Or is all of that suppressed because the police wouldn't have found him otherwise without violating the 4th amendment? Edit: Made my first question more specific

wmf 13y ago
See http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

leepowers 13y ago

....as of 2010 the Tallahassee Police Department had used stingrays a staggering 200 times without ever disclosing their use to a judge to get a warrant. This is the heart of the problem with law enforcement surveillance at all levels (local, state, federal). In the U.S. we've always had independent judicial oversight for police entering and searching your home. There's absolutely no reason why a similar invasion (if not more severe), which can track your movements and conversations, should be held to a lesser standard. Time and again law enforcement has sided with what's expedient. They should be erring on the side of caution when it comes to the fundamental rights of the citizens they've sworn to protect.

wwweston 13y ago
> Time and again law enforcement has sided with what's expedient. They should be erring on the side of caution when it comes to the fundamental rights of the citizens they've sworn to protect. Agreed. There seems to be a narrow view of which laws they're enforcing. I think it's arguable that when law enforcement fails to respect fundamental rights which are also part of the law they're ostensibly enforcing then they're failing at their job as much as if they were to observe a property crime in progress and take no action to catch the perps. Of course, it's also arguable that most officers (and prosecutors) work inside a system which incentivizes that narrow view.

pg_is_a_butt 13y ago

FUCK THE POLICE

pmorici 13y ago

Pretty sure an NDA can't prevent an individual from testifying truthfully in a court in the US no matter what the NDA says. So essentially the Police just lied.

deleted 13y ago
[deleted]
DerpDerpDerp 13y ago
Police in the US lied to a court of law? Why, that's just unpossible in this great nation!
- EpicEng 13y ago
  If you're going to make a sweeping insult about all law enforcement in a given country at least try to use proper grammar when doing so. "Unpossible" is not a word.
  - DerpDerpDerp 13y ago
    There is a consistent trend in both prosecutors and police lying to defense attorneys and judges as part of criminal prosecutions in the US, across a large enough swath of the country and in federal courts (which inherently reflect on the country at large) to make it a fair accusation. The choice of the word "unpossible" was precisely to mock the position that police lying would be surprising as unintelligent.
  - rosser 13y ago
    It's also a meme, of which you may not be aware. It comes from Ralph Wiggum, the caricature of the special needs child on The Simpsons, when he says, "Me fail English? That's unpossible!" In common use, it's generally taken to mean exactly what the GP poster intended: a mock expression of surprise at a thing that is, in fact, assumed to be the case.
    - EpicEng 13y ago

gumby 13y ago

Metacomplaint: The real title of this piece should be "Police used NDA as an excuse to hide use of cell phone tracking device from judge." As others have already commented, (e.g. pmorici) there is no way a civil agreement could prevent disclosure in a criminal matter. It's no great surprise the police would want to do this. What's disappointing is the reflexive journalistic cringe to be "fair" which in fact ends up being unfair. I'm not advocating froth-at-the-mouth partisanship a la Fox News or WorldNetDaily. But this headline unambiguously skews the story by taking the cops' word as they (mendaciously) uttered it.

chrismcb 13y ago

It sounds like they did some dirty underhanded things... But did they get in trouble for finding the thief of a phone, by tracking the victim's phone?